This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Carnell Anthony Byrd,
Filed February 14, 2006
Toussaint, Chief Judge
Janelle Kendall, Stearns County Attorney, Stearns County Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)
John M. Stuart, State Public Defender, Susan Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Carnell Anthony Byrd claims that he is entitled to a new trial because the trial court infringed on his right to the free exercise of religion and that his convictions of first-degree aggravated robbery and possession of a gun by a felon should be reversed because the evidence was insufficient to support the convictions. Because there is no record support of infringement of appellant’s right to the free exercise of religion and no prejudice to him from the alleged infringement, we conclude that he is not entitled to a new trial, and because there is sufficient evidence to support the conviction on both counts, we affirm.
1. Free Exercise of Religion
Before trial, appellant appeared wearing a cross. The trial court told him that he could decide whether the cross would remain visible or be concealed under his shirt and that, if he chose to leave it visible, he was entitled to a hearing on the matter. Appellant, without speaking, placed the cross under his shirt and did not refer to it again. He argues that he is entitled to a new trial because his right to the free exercise of religion was violated.
When a “district
court arguably infringed on [a] defendant's constitutional right to the free
exercise of religion by ordering him to wear his cross inside his shirt during
trial, the violation was not an error affecting a fundamental trial right that
warrants a new trial.” State v. Tate, 682 N.W.2d 169, 171 (
2. Sufficiency of the Evidence
In considering a
claim of insufficient evidence, this court’s review is limited to a painstaking
analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, is sufficient to allow the jurors to
reach the verdict that they did. State v. Webb, 440 N.W. 2d 426, 430 (
Appellant argues that his robbery conviction should be reversed because the state failed to prove that he was the person who committed the robbery. The convenience store clerk who was robbed identified the robber to the police as a man of appellant’s approximate height and build, wearing a checked jacket. A week later, she identified appellant without hesitation in a photo lineup. She testified in court that appellant was “one and the same” as the person who robbed her.
a conviction is based on eyewitness identification at trial following a
pretrial photographic identification, that conviction will be reversed only if
the photographic ‘identification procedure was so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable
misidentification.’” Seelye v. State,
429 N.W. 2d 669, 672 (
Appellant also argues that his conviction of possession of a gun by a felon should be reversed because the state failed to prove that the gun used in the robbery was not a replica. The clerk testified that the robber held a gun “about a foot, foot and a half” away from her face, that he was holding it in his right hand, “straight in front of him, and . . . to the side,” that it was a semiautomatic, that it looked like “a real gun” and she believed it to be a real gun, that he cocked the gun by racheting the top slide back, that she saw the chamber was empty, and that she was scared because she did not know for a fact whether the gun was loaded or not. Her testimony provided sufficient evidence for the jurors to find that appellant was in possession of a gun and that appellant was the person who robbed the store.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 By failing
to object and voluntarily concealing the cross, appellant arguably waived his
right to appeal the issue. See Roby v. State, 547 N.W.2d 354, 357 (